THIRD SECTION
DECISION
Application no. 34194/09
Nihat and Sanija PULIĆ
against Serbia
The European Court of Human Rights (Third Section), sitting on 6 September 2016 as a Committee composed of:
Pere Pastor Vilanova, President,
Branko Lubarda,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 19 June 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Nihat Pulić is a Serbian national, who was born in 1965 and lives in Novi Pazar. The second applicant, Ms Sanija Pulić, was a Serbian national, who was born in 1940 and lived in Novi Pazar. They were represented before the Court by Ms R. Garibović, a lawyer practising in Novi Pazar. The second applicant died in the course of proceedings before the Court.
The Serbian Government (“the Government”) were represented by their Agent at the time, Ms V. Rodić.
The applicants’ late sister and daughter, Ms Rubina Pulić, who had never lodged the application with the Court herself, was employed by a socially-owned company DP Savremena konfekcija Raška Novi Pazar, (hereinafter “the debtor”), based in Novi Pazar.
On 10 November 2004, 6 April 2005 and 18 April 2006, the Novi Pazar Municipal Court ordered the debtor to pay Ms Rubina Pulić certain sums on account of salary arrears. These judgments became final on 31 December 2004, 23 May 2005 and 30 May 2006, respectively.
On 8 February 2005, 23 June 2005 and 20 July 2006, upon Ms Rubina Pulić’s request to that effect, the Novi Pazar Municipal Court accepted the enforcement of the said judgments and further ordered the debtor to pay Ms Rubina Pulić the enforcement costs.
On 5 May 2008 Ms Rubina Pulić resubmitted the request for the enforcement of the said judgments, which was finally rejected by the Novi Pazar District Court on 21 July 2008.
On 20 November 2008 the Constitutional Court dismissed the applicants’ appeal.
As noted above, the applicants lodged the application with the Court on 19 June 2009.
On 20 November 2009 the applicants’ representative informed the Court that the second applicant, Ms Sanija Pulić had died in the course of the proceedings before the Court. In addition, she noted that the first applicant who was the second applicant’s son, Mr Nihat Pulić, had been declared as her only heir and that he had expressed the wish to further pursue the application also in the second applicant’s stead.
On 4 May 2015 the Government informed the Court that on 24 January 2008 Ms Rubina Pulić had withdrawn her requests for the enforcement of the three judgments in question. As a result, the Novi Pazar Municipal Court terminated the enforcement proceedings by its decisions of 11 February 2008, 14 February 2008 and 11 April 2008, respectively. The applicant did not lodge an appeal against these decisions.
The enforcement of the final judgements in question has never been carried out.
COMPLAINTS
The applicants complained about the non-enforcement of the final domestic judgments rendered in favour of their late sister and daughter. These complaints fall to be examined under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
The Government asked the Court to declare the application inadmissible as an abuse of the right of petition. They pointed out that the applicants’ representative had omitted to inform the Court that the enforcement proceedings had been terminated at the request of Ms Rubina Pulić.
The applicants’ representative did not dispute that the requests for enforcement had been withdrawn, but argued that this was irrelevant.
The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information (see Kerechashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; Poznanski and Others v. Germany (dec.), no 25101/05, 3 July 2007; and Simitzi-Papachristou and Others v. Greece (dec.), no. 50634/11, § 36, 5 November 2013) or if significant information and documents were deliberately omitted, either where they were known from the outset (see Kerechashvili, cited above) or where new significant developments occurred during the procedure (see Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008; and Tatalović and Dekić v. Serbia (dec.), no. 15433/07, 29 May 2012). Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Poznanski and Others, cited above; Predescu, cited above, §§ 25-26; and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).
The Court notes that, according to the documents submitted by the Government, Ms Rubina Pulić had indeed withdrawn her enforcement requests on 24 January 2008, which led to the termination of the enforcement proceedings.
The applicants’ complete silence on the termination of the enforcement proceedings, notwithstanding the fact that they were subsequently resumed, while upholding their allegation that the judgment in question had not been enforced throughout that time cannot be interpreted, in the Court’s view, as anything else but a failure to disclose information concerning the very core of the application.
Having regard to the importance of the applicants’ failure to disclose this information for the proper determination of the present case, the Court finds that such conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
In view of the above, it is appropriate to reject the application as an abuse of the right of petition, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 September 2016.
Fatoş AracıPere Pastor Vilanova
Deputy RegistrarPresident
Full & Egal Universal Law Academy